The Hateful and the Obscene: Studies in the Limits of Free Expression (review)

In this cogent and yet readable work, L.W. Sumner proposes no less than a theory of free expression, that is, a 'coherent set of principles capable of answering the most important ... questions about expressive freedom and its limits.' His focus is on two fairly narrow though very important such areas: pornography and hate propaganda. He also limits himself, virtually, to Canadian law and public policy, to the imposing of restrictions on pornography and hate speech by the criminal law, in relation to the Charter of Rights and Freedoms. The question is: should we have criminal restrictions on these activities in this country now? His answer, essentially: no - a position, as he explains, virtually the opposite, with regard to hate speech, to his view of fifteen years earlier when he first became involved with these issues. Why the change of mind? Thinking further about it, and finding out more about it - and what better inducements could there be?

His theory on this subject appeals to a foundation in a sense readers not familiar with contemporary social philosophy may need to have explained; happily, it is quite well explained (chapter 2) and is virtually that found in John Stuart Mill's classic work, On Liberty. Mill advances a famous general principle, that the only legitimate purpose of impositions by the public on the individual is the prevention of harm to others. Sumner proposes that this is indeed the best underlying theory to attribute to the framers of the Charter.

Liberty is to be protected up to the point at which such harm is forthcoming. Sumner carefully explains that the principle is to be applied pretty much as an 'absolute' restriction, neglecting details and apparent cases in which perhaps more good than harm might come from repression. Mill's principle aims to protect especially the personal part of one's life, which, he supposes, is intrinsically not such as to affect others at all. However, the social part, as we might call it, needs to be divided carefully into two cases: those where the other persons involved are so voluntarily, and those where they are not. The point of Mill's principle is to restrict government-licensed interference in the lives of individuals in all contexts except the last: in which others are affected negatively, that is, harmed, by the actions in question. And even then, the government shouldn't necessarily always interfere; a major issue for government is when the harm done is sufficient to justify intervention by the law. We should not use cannon against fleas, even if what we are attempting to regulate is indeed somewhat harmful to some persons.

After much careful and well-informed discussion, Sumner arrives at the conclusion that nearly all the constitutional decisions affecting these issues over the past couple of decades are in error. Sometimes they fail of clarity on the issue of who is harmed and how much; and almost always, they fail of a reasonable requirement of evidence.

No one can doubt the importance of these issues, and you are unlikely to read anything as carefully reasoned as what you will find in this remarkable book. Like all of Sumner's work, it is also a model of organization and incisive prose that is a pleasure to the inner ear. Few academics manage to be so readable. Read it, by all means.